The official blog of Just Law International, PC

Asylum

Over the past few years, as increased numbers of Central Americans crossed the border into the U.S. seeking asylum from domestic and gang-related violence, these types of cases have received increased attention.

U.S. asylum is a humanitarian benefit provided to individuals who fear “persecution” in their home country if the feared persecution is on account of one of five statutorily protected grounds. One of these protected grounds is “membership in a particular social group,” and whether victims of domestic or gang violence belong to a “particular social group” has been frequently debated in immigration courts. (The four other protected asylum grounds are race, religion, political opinion, and nationality.) This post addresses recent changes in asylum law affecting these cases, and well as some of the obstacles that must be overcome in order to achieve success.

Domestic Violence

On August 26, 2014, the Board of Immigration Appeals (BIA) issued its first ever precedent decision, Matter of A-R-C-G-, recognizing that women fleeing domestic violence can be members of a particular social group (PSG). The Applicant in that case, a mother of three, suffered extreme abuse at the hands of her husband in Guatemala. The decision in Matter of A-R-C-G- was ground-breaking because historically immigration judges found that women fleeing domestic violence did not belong to a PSG, reasoning that a group defined by gender was far too broad. In Matter of A-R-C-G-, the BIA specifically held that the applicant belonged to the PSG of “married women in Guatemala who are unable to leave their relationship,” a group defined by gender, nationality and marital status.

What does this mean for victims of domestic violence? First of all, there is hope of obtaining protection in the United States. Secondly, however, it is important to remember that asylum is not a given. Not every domestic violence victim belongs to the PSG of “married women in Guatemala who are unable to leave their relationship,” which is the specific PSG defined in Matter of A-R-C-G-. Identifying and defining a social group that meets the standard for asylum eligibility is crucial for domestic violence-based claims. Furthermore, there are many additional eligibility factors that an applicant must establish beyond proving that she belongs to a PSG. Therefore, having a knowledgeable and trustworthy immigration attorney to help prepare a strong, well-argued case is critical.

Gang-Related Violence

Many of those fleeing Central America are fleeing the gang violence that plagues that area. Unfortunately, asylum claims based on fear of gang violence frequently fail. However, there are reasons to believe that USCIS and immigration courts are becoming more receptive to gang-related asylum claims than the BIA and federal court decisions in this area might suggest.

The important thing to keep in mind in these cases is the motivation of the persecutor. If gang members want to harm someone exclusively because they want retribution, or his money, or they are targeting him for membership simply because he is a member of the general public, the burden for proving eligibility for asylum is not met. The persecutor must be motivated to specifically target the asylum applicant at least in part because of who he or she is; because of his or her personal attributes or associations. It is also important to remember in these cases that the PSG cannot be defined “circularly” by the fact that its members have been targeted for persecution.

Some of the more successful PSG claims for those targeted by gangs are based on family membership. For example, an applicant who fears persecution from gang members because she is related to someone who has testified against the gang or resisted gang recruitment is much more likely to be granted asylum than the person who actually testified against the gang or refused gang membership. A recent BIA case, Matter of W-G-R-, also opened the door for successful PSG asylum claims by former gang members, although a violent criminal past may be an issue in these claims.

Again, retaining reliable and knowledgeable counsel for these claims is vital. Although gang-related cases are complicated and difficult to win, success is not impossible, and a good lawyer can make the difference.

Please contact us today for a consultation if you or someone you know may have an asylum claim based on domestic or gang violence. We look forward to serving you.

Please consult an attorney for advice about your individual situation. The information provided on this site is not legal advice, nor is it intended to be. You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls. Contacting us does not create an attorney-client relationship. Until an attorney-client relationship is established, please withhold from sending any confidential information.

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The USCIS Asylum Offices recently announced significant changes in the way they prioritize affirmative asylum applications, which is good news for some, and not so good for others.

Traditionally, Asylum Offices processed cases on a “last in, first out” basis, meaning they prioritized cases filed most recently. This was intended to decrease the number of frivolous cases filed by people who, knowing the process would take several years used an asylum application as a way to stay in the U.S. and obtain work authorization.

The “last in, first out” system works as long as the Asylum Offices are able to keep up with the number of cases being filed. This had been the case from 1997 when the procedure was first implemented until approximately 2013, with most applicants receiving interviews within three to five weeks.

This changed, however, in early 2013, when large numbers of Central Americans, mostly children, began arriving at the U.S. border and claiming asylum. These cases received priority because the applicants were primarily detained and/or minors. The influx of cases overwhelmed the Asylum Offices and created a backlog of affirmative asylum cases, resulting in frustration for many applicants who subsequently had to wait years for an interview while others who filed more recently only had to wait a few months.

Despite Asylum Office efforts to hire additional asylum officers, the backlog remained. So, as of late December 2014, the Asylum Offices decided to change the way they prioritize cases. Applications are now adjudicated according to the following priorities:

1st – Rescheduled cases (applications that were scheduled for an interview, but the applicant requested a new interview date);

2nd – Applications filed by minors; and

3rd – Applications filed by adults on a first in, first out

This is extremely good news for applicants in the backlog because it means that Asylum Offices are now prioritizing pending cases over newly filed cases and they should receive interviews sooner rather than later. At Just Law International, clients whose asylum applications have been pending since 2013 are in fact receiving interviews.

The bad news is that all new asylum applicants now have a long wait for interviews (the official estimate from USCIS is 20-24 months). There are ways an applicant can try speeding up her case, such as the “short-notice” list for those pending at the Arlington Asylum Office, or a request for an expedited interview based on “compelling or exceptional circumstances.” At Just Law International, we can help you determine if either is an option for you, and assist you with the request. We can also help track your case and ensure that you receive work authorization as soon as possible after you file. Please contact us to schedule an appointment to discuss your case and the options available to you. Asylum is complicated, and especially now with these changes, you need an experienced attorney advocating for you and helping you through the process.

Please consult an attorney for advice about your individual situation. The information provided on this site is not legal advice, nor is it intended to be. You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls. Contacting us does not create an attorney-client relationship. Until an attorney-client relationship is established, please withhold from sending any confidential information.